In simple terms, without complying with strict formalities set out in the Wills Act 1837, your "last will and testament" is nothing more than an expression of wishes. For all sorts of reasons which it is difficult to critique, the 1837 Act requires testators (other than certain servicemen) to sign testamentary documents in the presence of two adult witnesses, who then sign in the testator’s presence. One of the valuable functions of witnesses is to provide evidence after the fact of identity and capacity.
In a world where the holograph (unwitnessed but handwritten) will is not part of the legal culture and notaries have a lower profile than in civil law, this process provides some essential safeguards; without it, you don’t have a valid will; with it, you can have a lot of confidence in the document in front of you. The trouble is that not having a valid will can have dramatic consequences and we have not reached yet the creative conclusion of another common law court that notes left behind on the deceased’s mobile telephone can act as a binding will.
In a bid to gain an emergency relaxation of the strict rules, the Law Society of England and Wales and STEP have made a strong case for following where others (e.g. our neighbours in Scotland) have rapidly led. The British government however, in comments to the House by a Justice Minister (representing the England and Wales angle) appears unconvinced of the case for addressing the clash between our Victorian rules on witnessing wills and the current stringent guidance on social isolation.
The government has many pressing, life and death issues on its agenda at the moment. However, a precedent exists for an across-the-board relaxation: the current wording in fact dates to 1982 and was inserted by a section entitled "Relaxation of formal requirements for making wills". Even the no doubt paternalistic Victorian legislator permitted deviations from the norm in crisis situations – under the 1837 Act itself, soldiers and sailors in actual military service have the witnessing rules relaxed. The challenge in England and Wales for non-servicemen arises from the understanding of the concept of presence, which currently does not extend to merely being visible. In other words, Apple FaceTime, Skype video, Microsoft teams or Zoom calls do not cut the mustard and wills and codicils can’t be signed in counterpart; nor can witnesses sign a separate attestation on a distinct piece of paper. A similar position still applies in (say) Guernsey.
Scotland has a differently-worded validity requirement. Whilst normally witnessing would proceed in person as it does in England, for the length of the crisis, the Law Society of Scotland has felt able to republish its guidance and sanction remote witnessing through modern technological supports. Other countries, including notably one with the same legal tradition as ours, have led the way with a creative response.
Under New Zealand’s Epidemic Preparedness (Wills Act 2007 – Signing and Witnessing of Wills) Immediate Modification Order (the IMO), the government has been able to use an Order in Council to relax the rules on presence and the use of counterparts. It is even confirmed that there will be no need to replace a will signed under the crisis rules after the crisis is over and the IMO lapses.
At the same time, Jersey has implemented similar, temporary rules, which incorporate some safeguards that must be adhered to, in response to a concern over the risks of witnessing "at distance". Ontario is reported to have passed a similar emergency order.
At the end of March, the Ministry of Justice in the UK announced that solicitors acting in connection with the execution of wills count as keyworkers. Surprising as that perhaps is, it indicates that the ability to sign a will has some importance: perhaps there may still be time to relax the current impediments? Otherwise, at a time when many solicitors have seen a material uptick in demand for wills, the government risks serious breaches of social distancing, with all that that entails, or a serious rise in the number of intestacies, which is to nobody’s benefit. Such a relaxation would not be entirely out of sync with the Law Commission’s views (which have been accepted by the government) on the formalities for signing documents more widely.
Pending perhaps a Law Commission study, one could imagine that for the length of the social distancing measures the witnessing could be through remote means, as in Scotland, backed up by something we essentially already have – the affidavit of due execution. Without deviating too far from the principles of the 1837 Act, that would deal with the Justice Minister’s concerns about protection of the vulnerable and alleviate the risks to lawyers, witnesses and testators themselves. The only other, more creative approach will be, in limited cases, to see if the Wills Act 1963 can fill some gaps: this implemented the 1961 Hague Convention designed to permit international recognition of documents taking other non-domestically recognised forms, as wills for English purposes. Accordingly, for anyone with – for example – another nationality which may have relaxed the rules or have a less testing format available, it may be possible to avoid witnessing altogether. This may be a minority sport, but cannot be discounted entirely: anyone with a passport from a civil law country may be in a position to write a will out by hand and sign it entirely without witnesses. Ideally, of course, this needs advice from the relevant jurisdiction, for risk/insurance reasons, but in modern, multi-cultural Britain and especially in London, this is not entirely off the wall!